Courtesy: Ashok Agarwal, Social Jurist, New Delhi
Imagine the plight of a young doctor fresh out of medical college and desirous of pursuing a specialization. Imagine the dismay at having his application rejected on the grounds that the degree of his disability was not acceptable to the MCI and that his case falls out of the limit of reservation contemplated under Section 39 of PWD Act, 1995.
The details
Dr Raman Khanna, applied for post graduation under the reserved handicapped in a Medical College under the University of Delhi after having successfully completed his MBBS degree with the mandatory rotating internship. Dr Raman Khanna has partial locomotor disorder of the upper limbs since 1990. He had gained admission to the undergraduate course through open admission without availing of any reservation under the handicapped quota. This disability was not noticed earlier because of his entry to the MBBS course on open merit. He appended a ‘Medical Certificate’ confirming his disability issued by LNJP Hospital, Delhi Administration. His application for post graduation was rejected on the grounds that he had an upper limb disability of a degree not acceptable to the Medical Council of India (MCI) and that his case falls outside the limit of reservation for PH.
The argument
Consider the reasons for the decision taken by the MCI against Dr Khanna’s candidature:
- That the candidate had a degree of handicap that was not acceptable to the MCI.
- That the reservation quota was full since the 4 seats allocated to the Physically Handicapped, ie, 1% of the total number of seats had been utilized.
Counter-arguments
The case was argued that:
- Section 58 of the Disabilities Act and Rule 4 of the Disability Rules, makes it very clear that individual Universities, Institutions or Establishments have no alternative but to accept a certificate issued by the Medical Board constituted by the Central or State Governments, as the case may be. The LNJP Hospital, Delhi Administration has been specifically empowered to carry out this task by the Government of NCT of Delhi, Health and Family Welfare Department, New Delhi in terms of Order dated 8.8.2002.
There is no reason to doubt the rationale and intention behind the contention of the MCI that a person with relatively milder disability should be preferred against another who suffers from an aggravated condition, so long as the 3 percent minimum reservation is not breached. However, no institution can introduce conditions within these stipulations as per its own desires, without having specified so earlier. Conceptually, the graded acceptance of applications could be achieved by making three brackets of 70% to 60%, 60% to 50% and 50% to 40% disability. If there are no candidates other than in the 40% to 50% category, it would be illegal for the respondents not to give effect to the statutory benefits imparted by the Disability Act. - The PWD Act obligates an institution to reserve 3% of its seats for physically handicapped, hearing and visually handicapped students. The MCI debars students with hearing and visual handicaps from applying for the course. Based on this, it assumed that only 1% reservation was applicable for persons with physical or locomotor handicaps. This is a flawed assumption, as the law does not state that the 3% reservation has 1% allocated to each of the 3 sub groups of disabilities. Since the law mandates a 3% reservation, the MCI cannot lower the quantum of reservation. Thus, it has to offer this 3% reservation to the category it allows, namely, physical or locomotor handicaps.
The judgment
The High Court agreeing with the arguments of the petitioner, and directed the MCI to take a fresh decision on the application of Dr. Raman Khanna.